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Thursday, October 31, 2013

Is the International Court an “imperialist Court”?

ASocialist Interrogation by

Onyango Oloo

We have read and heard people
like Yoweri Museveni of Uganda, Robert Mugabeof Zimbabwe and Uhuru Kenyatta of Kenya call the ICC an imperialist,
even a racist tool targeting Africa and Africans.

I would not have bothered to
write a long essay to respond to the rantings and ravings of assorted African
leaderswho have a very tenuous claim to
political legitimacy and credibility and whose history of commitmentto Africa’s liberation is not above reproach
given their own sordid history when it comes to grappling with the internal
challenges of democracy and popular participation within the confines of their
respective national boundaries.

1.0.Some African Critiques of the ICC

What provokes and propels me to
grapple with this question is in a way very personal.

None other than

BenedictWachira, the Secretary General
of my own party, the Social Democratic Party of Kenya recently shared with the
broader reading public a blog piece entitled, “Africans should not search for Justice at The International Criminal
Court,” which he shared with me and other comrades in the leadership of our
own party. It is important read Wachira’s contribution in full in order to
grasp his entire argument. You can access the essay at this link. Wachira argues, inter alia:

…the fact remains that the ICC is
an imperialist court. Some members of Parliament, the President, his Deputy and
some African heads of state seem to have come to this realization just a year
or a few months ago. It is true that this court targets and is pleased to try
Africans, right from the African Presidents to small time rebels. This is
despite the fact that other than the Democratic Republic of Congo, the worst
war crimes in the recent years have taken place outside of Africa. It is also
not just any other criminal African President/rebel that the ICC targets. Some
can actually survive their dragnet if they have good relations with the western
powers. In Libya for instance, armed rebels toppled and murdered Muammar
Gaddafi with the support of the imperialist countries. In the process, they
killed thousands of dark skinned Africans Workers who were operating in the
different economic sectors in Libya. Today, it is Gaddafi’s son, Saif who is
standing trial at the ICC and not the racist Al Qaeda linked rebels. (Nobody is
telling us who is currently mining Libya’s oil). In the case of Ivory Coast, a
rebel leader, Allasane Ouattara violently ousted President Laurent Gbagbo from
power, with direct combat involvement of the French Army. While Ouattara had
destabilized the north for many years, causing uncountable deaths and untold
suffering to the people of Ivory Coast, it is Laurent Gbagbo who is sitting at
the ICC, and not Ouattara. The biggest culprit in the DRC conflict which has
claimed over 6 million lives is Rwanda’s Paul Kagame, who at this moment a
darling of imperialism hence untouchable by the ICC.

This is a view shared by

Zaya Yeebo,
the Ghana born Director of the Nairobi-based Amkeni Kenya in an article done for Pambazuka
News:

TheInternational Criminal Court with its
selective justice has become a vehicle for enforcing neocolonial interests in
Africa. ICC has proven that it is beholden to countries that are not even
signatories to the Rome statute that set it up. Once again, the spotlight is on
Africa as four Kenyans – three political leaders and a journalist – have been
indicted at the International Criminal Court (ICC). Once again, the question
that has never been answered is, why Africa? And why the speed? In Anglo-Saxon
parts of the world, some leaders are treated with kids’ gloves when they commit
‘crimes against humanity’. Others, like the former British Prime Minister Tony
Blair and former US President George Bush, go to write memoirs defending their
abuse of international laws.Let us put
this in context, in Ivory Coast, ex-President Laurent Gbagbo was ‘abducted’
(the words used by Jerry John Rawlings, former President of Ghana) at midnight
and carted off to The Hague. In my view, his crimes remain unknown except to
the French and his Ivorian adversaries. Charles Taylor (Liberia) remains in The
Hague incarcerated. Now we learn that all along, the former President of
Liberia may have been a CIA agent. So we can guess why the leadership of the
United States would like to see him remain in The Hague. He knows too much. In
the case of Libya, Colonel Muammar Gaddafi and his sons were even indicted
before the ICC could establish whether they had committed crimes ‘against
humanity.’ Other Africans from the Democratic Republic of the Congo are also
facing charges in The Hague. In the Sudan, a sitting head of state, President
Omar Bashir, has also been indicted. The queue of Africans waiting to be hanged
by this international court is endless.Yet, a cursory glance at the world also tells of many crimes committed
against ordinary citizens – from Palestine to Afghanistan, to Libya and, of
course, Iraq. Who bears responsibility for these crimes? Are we suggesting that
the lives of Iraqi, Libyan and Palestinian children and women do not matter?
How come no one is facing so-called justice in The Hague? This raises serious
questions about the selective justice and double standards of the international
systems of justice that is selectively applied to Africa and especially African
leaders by the so-called ‘international community’. It leaves me with no option
but to conclude that the ICC has become a vehicle for enforcing neocolonial
interest in Africa, which members of the UN Security Council can exploit. What
is even more worrying is that the ICC has become a tool in the hands of vicious
African elite/politicians fighting for the national cake. All it takes is to
convince the so-called international community that your opponent needs to go
to The Hague. I will suggest in all seriousness that serious crimes against
humanity have been committed in Libya by NATO forces, and by both sides in the
post-election crisis in the Ivory Coast. But we are yet to see some action on
that front. The work of the ICC will make sense, and justice will be served, if
the leaders who authorised the bombing of Tripoli under the guise of UN
resolutions also face the same justice that the Kenyans are supposedly going to
face.

It was Alexander Murdoch Mackay,
the Scottish Presbyterian missionary to Uganda, who observed in 1889: “In
former years, the universal aim was to steal Africans from Africa. Today the
determination of Europe is to steal Africa from the Africans.” A hundred and
twenty-three years later, Europe appears to still be trying to steal both
Africa and the Africans. They are now using their new creation, the
International Criminal Court (ICC), to steal Africans from Africa to put on
show-trials in Western Europe.

This has been seen as a means of
destabilising the African continent – something which then makes the political
domination of Africa and the subsequent exploitation of African minerals and
resources that much easier. As the African Union has put it: “The abuse and
misuse of indictments against African leaders have a destabilising effect that
will negatively impact on political, social and economic development of member
states and their ability to conduct international relations…”

The ICC’s actions have provoked
furious debates over the Court’s potential impact, its exclusive focus on
Africa over other parts of the world, its selection of cases, and the effect of
its indictments and prosecutions on peace processes on the African continent.
Over-zealous evangelism has been caught up in double standards, hypocrisy,
racial stereotyping, and national and personal agendas.

Judge Richard Goldstone (the ICC
enthusiast from South Africa), has highlighted the political nature of the
international criminal tribunals that preceded the ICC: “The problem with the
UN Security Council is that it says no in the case of Cambodia, Mozambique,
Iraq and other places where terrible war crimes have been committed, but yes in
the case of Yugoslavia and Rwanda. That’s a political way of deciding where
international justice should be meted out. There has long been a concern that these
tribunals ‘politicise justice’… It is noteworthy that no ad hoc tribunals were
established to investigate war crimes committed by any of the five permanent
members of the UN Security Council or those nations these powerful states might
wish to protect.”

Pro.fMahmood Mamdani, the influential Ugandan
academic, agrees: “The fact of mutual accommodation between the world’s only
superpower and an international institution struggling to get its bearings is
clear if we take into account the four countries wherebyby 2009 the ICC had launched its investigations:
Sudan, Central African Republic, Uganda and DRCongo. All…are places where the
US has no objection to the course charted by the ICC investigations.

“In Uganda, the ICC has charged
only the leadership of the [rebel group] LRA but not that of the pro-US
government headed by President Museveni. In Sudan, the ICC has charged
officials of the Sudan government. In DRCongo, the ICC has remained mum about
the links between the armies of Uganda and Rwanda – both pro-US – and the
ethnic militias that have been at the heart of the slaughter of civilians.

Mamdani notes further that: “The
ICC’s attempted accommodation with the powers that be has changed the
international face of the Court. Its name notwithstanding, the ICC is rapidly
turning into a Western court to try African crimes against humanity. Even then,
its approach is selective: it targets governments that are adversaries of the
US and ignores US allies, effectively conferring impunity on them.”

In their well-argued paper, “The
Impact of Timing of International Criminal Indictments on Peace Processes and
Humanitarian Action”, Jacqueline Geis and Alex Mundt noted that “although the
ICC was established as an impartial arbiter of international justice, both the
timing and nature of its indictments issued to date suggest that the
intervention of the ICC in situations of ongoing conflict is influenced by
broader external factors.”

“Broader external factors” bring
into sharp focus the indictment by the ICC of the ex-Libyan leader, Muammar Al
Gathafi, during last year’s NATO war in Libya. Gathafi’s indictment contrasts
starkly with the ICC’s silence on the presidents of Syria and Yemen, and the
King of Bahrain where similar “war crimes” and “crimes against humanity” as
alleged by the ICC to have occurred in Libya under Gathafi have happened over
the past year. But Gathafi, then being bombed and wanted by the Western powers,
was indicted by the ICC, while, to date, the Syrian President Bashar al-Assad,
the Yemeni President Ali Abdullah Saleh, and the King of Bahrain Hamadibn Isa
Al Khalifa have been left in peace.

Another example is the ICC
actions in Sudan regarding the Darfur situation, which have been particularly
controversial not least because Sudan, as a non-signatory of the Rome Statute,
does not come under the ICC’s jurisdiction. In so doing, the ICC has polarised
international opinion on the Court.

Unfortunately for the ICC and
Europe, they are targeting Africa at a time when the continent is asserting its
political and economic independence. As a result, Africa has rejected European
and ICC attempts at regime change by deeply questionable legal diktat. Broadly,
the ICC has emerged as a de facto European court, funded by Europe, directed by
Europe, and focused almost exclusively on the African continent, and thereby
serving Western political and economic interests in Africa.

Geis and Mundt have noted how the
ICC’s Africa focus is fragmenting international opinion: “The broad
international consensus in favour of the Rome Statute has begun to fray as the
Court pursued justice in some of the world’s most politically charged and
complex crises, all of which happened to fall within Africa. At the same time,
other states such as Burma and North Korea have so far eluded potential ICC
investigations, most likely for geopolitical reasons and/or deference to
regional interests. Other commentators alleged that the prosecutor has limited
investigations to Africa because of geopolitical pressures, either out of a
desire to avoid confrontation with major powers or as a tool of Western foreign
policy.”

This reality has been picked up
by the Rwandan president, Paul Kagame. He has dismissed the ICC as a new form
of imperialism created by the West and “put in place only for African countries,
only for poor countries”. He said that the ICC reflected “colonialism, slavery
and imperialism”.

The distinguished international
peace researcher and a past senior vice rector of the United Nations
University, Prof. Ramesh Thakur, reflects this growing consensus within the
developing world: “A troubling issue is how an initiative of international
criminal justice meant to protect vulnerable people from brutal national rulers
has managed to be subverted into an instrument of power against vulnerable
countries. A court meant to embody and pursue universal justice is in practice
reduced to imposing selective justice of the West against the rest.

These are strong words written by
people who argue from radical, progressive and ostensibly “anti-imperialist”
positions.

2.0.A Marxist-Leninist Approach to Imperialism

But is it really an incontestable
FACT that the International Criminal Court is indeed, “an imperialist court”?

At the risk of invoking thewrath and ire of my SDP Secretary General
Benedict Wachira, who employs withering sarcasm when he dismisses those he
deems to be “some confused Pan Africanists and Pseudo-Progressives (who) have
chosen to condemn AU’s en masse withdrawal from the ICC and have strongly come
into the defense of, and support for the ICC”, I will attemptto argue for an alternative interpretation of
the ICC.

To provide some contextit useful to know that I, too, sit in the
Central Committee of the SDP where I serve the Party as the Secretary for
Ideology. I am also a former Secretary General of the same party. The
SDP’sideological orientation is
Marxist-Leninist, or Communist if you prefer. We do not use words like
“imperialist” lightly in the way someneo-colonial collaborators masquerading as
“angry nationalists” belonging to some
mainstream Kenyan political formations are wont to do, especially now that the
Hague trials featuring President Kenyatta, his Deputy William Ruto and
journalist Joshua Sang, are finally underway.

Marxist-Leninists, of whom the
leaders of the SDP of Kenya are a local sample, use political and ideological
terms carefully, after weighing and analyzingtheir ontological , morphological and
semantic underpinnings in a thorough, strictly scientific way.

To us who proudly don the
COMMUNIST jacket here in Kenya because we think it is an HONOUR to do so,
“imperialism” is not just an EMOTIONAL, RACIAL epithet flung impetuously and
impulsively at “foreigners” who happen to be born with a Caucasian skin.

Rather, to consistent
Marxist-Leninists the world over, the phenomenon called Imperialism refers to a
specific, historically determined, political, social, economic, cultural,
technological, ideological POWER relationship rooted in an identifiable mode of
production that gives rise to concrete tensions between actual living and
breathing classes, nations and regions.

Those who posit that the ICC is “an
imperialist court”, are literally inferring that the International Criminal
Court is either an entity created by those who hold the levers ofglobal monopoly capital or it servesthese international capitalists in one way or
another. The flip side of this anti-ICC argumentmeans therefore that the ICC by its very
nature is AGAINST the interests of all those dominated, controlled and
oppressed by global monopoly capitalism meaning all those countries suffering
from colonialism, neo-colonialism and other forms of imperialist oppression.
From this it flows that all progressive, anti-imperialist, revolutionary
Africans have a DUTY to oppose this imperialist edifice known as the ICC.

But, is it the case that the ICC
is a tool of imperialist powers to undermine for example, African sovereignty
and the right of countries like Kenya to freely determine their destiny? Does
the ICC exist todo the bidding of the
G-8, Uncle Sam, NATO and the leading imperialist powers?

To answer this question, we must
deal with the FACTS. We must consult HISTORY.

3.0.History
and Origins of the ICC

Here is an excerpt from
Wikipedia:

The International Criminal Court is a
permanent tribunal to prosecute individuals for genocide, crimes against
humanity, war crimes, and the crime of aggression (although jurisdiction for
the crime of aggression will not be awakened until 2017 at the earliest).

The ICC was created by the Rome
Statute which came into force on 1 July 2002. The Court has established itself
in The Hague, Netherlands, but its proceedings may take place anywhere.It is intended to complement existing national
judicial systems, and may only exercise its jurisdiction when national courts
are unwilling or unable to investigate or prosecute such crimes.

Currently, 122 states are states
parties to the Statute of the Court, including all of South America, nearly all
of Europe, most of Oceania and roughly half the countries in Africa.A further 31 countries, including Russia,
have signed but not ratified the Rome Statute. The law of treaties obliges
these states to refrain from “acts which would defeat the object and purpose”
of the treaty until they declare they do not intend to become a party to the
treaty. Three of these states—Israel, Sudan and the United States—have informed
the UN Secretary General that they no longer intend to become states parties
and, as such, have no legal obligations arising from their former
representatives' signature of the Statute.United Nations member states have neither signed nor ratified or acceded
to the Rome Statute; some of them, including China and India, are critical of
the Court. On 21 January 2009, the Palestinian National Authority formally
accepted the jurisdiction of the Court. On 3 April 2012, the ICC Prosecutor
declared himself unable to determine that Palestine is a "state" for
the purposes of the Rome Statute and referred such decision to the United
Nations. The establishment of an international tribunal to judge political
leaders accused of war crimes was first made during the Paris Peace Conference
in 1919 by the Commission of Responsibilities. The issue was addressed again at
a conference held in Geneva under the auspices of the League of Nations on 1–16
November 1937, which resulted in the conclusion of the first convention
stipulating the establishment of a permanent international court to try acts of
international terrorism. The convention was signed by 13 governments, but was
never ratified, and the convention never entered into effect.

The United Nations stated that
the General Assembly first recognised the need for a permanent international
court to deal with atrocities of the kind committed during World War II in
1948, following the Nuremberg and Tokyo Tribunals.At the request of the General Assembly, the
International Law Commission drafted two statutes by the early 1950s but these
were shelved as the Cold War made the establishment of an international
criminal court politically unrealistic.

Benjamin B. Ferencz, an
investigator of Nazi war crimes after World War II and the Chief Prosecutor for
the United States Army at the Einsatzgruppen Trial, one of the twelve military
trials held by the U.S. authorities at Nuremberg, later became a vocal advocate
of the establishment of an international rule of law and of an International
Criminal Court. In his first book published in 1975, entitled Defining
International Aggression – The Search for World Peace, he argued for the
establishment of such an international court.

The idea was revived in 1989 when
A. N. R. Robinson, then Prime Minister of Trinidad and Tobago, proposed the
creation of a permanent international court to deal with the illegal drug
trade. While work began on a draft statute, the international community
established ad hoc tribunals to try war crimes in the former Yugoslavia and
Rwanda, established in 1994, further highlighting the need for a permanent
international criminal court.

In June 1989, motivated in part
by an effort to combat drug trafficking, Trinidad and Tobago resurrected a
pre-existing proposal for the establishment of an ICC and the UN GA asked that
the ILC resume its work on drafting a statute.The conflicts in Bosnia-Herzegovina and Croatia as well as in Rwanda in
the early 1990s and the mass commission of crimes against humanity, war crimes,
and genocide led the UN Security Council to establish two separate temporary ad
hoc tribunals to hold individuals accountable for these atrocities, further
highlighting the need for a permanent international criminal court.

In 1994, the ILC presented its
final draft statute for an ICC to the UN GA and recommended that a conference
of plenipotentiaries be convened to negotiate a treaty and enact the Statute.
To consider major substantive issues in the draft statute, the General Assembly
established the Ad Hoc Committee on the Establishment of an International
Criminal Court, which met twice in 1995.

After considering the Committee's
report, the UN GA created the Preparatory Committee on the Establishment of the
ICC to prepare a consolidated draft text. From 1996 to 1998, six sessions of
the UN Preparatory Committee were held at the United Nations headquarters in
New York, in which NGOs provided input into the discussions and attended
meetings under the umbrella of the NGO Coalition for an ICC (CICC). In January
1998, the Bureau and coordinators of the Preparatory Committee convened for an
Inter-Sessional meeting in Zutphen, the Netherlands to technically consolidate
and restructure the draft articles into a draft.

The United States and Israel
refuse to ratify, acknowledge or adhere to ICC.

Following years of negotiations,
the General Assembly convened a conference in Rome in June 1998, with the aim
of finalizing a treaty. On 17 July 1998, the Rome Statute of the International
Criminal Court was adopted by a vote of 120 to 7, with 21 countries abstaining.
The seven countries that voted against the treaty were China, Iraq, Israel,
Libya, Qatar, United States, and Yemen.

The Rome Statute became a binding
treaty on 11 April 2002, when the number of countries that had ratified it
reached sixty. The Statute legally came into force on 1 July 2002, and the ICC
can only prosecute crimes committed after that date. The first bench of 18
judges was elected by an Assembly of States Parties in February 2003. They were
sworn in at the inaugural session of the Court on 11 March 2003. The Court
issued its first arrest warrants on 8 July 2005and the first pre-trial hearings
were held in 2006.

During a Review Conference of the
International Criminal Court Statute in Kampala, Uganda, two amendments to the
Rome Statute of the International Criminal Court were adopted on 10 and 11 June
2010. The second amendment concerns the definition of the crime of aggression.

4.0.Does the Imperialist USA See the ICC as its
Tool?

The world’s most powerful and
leading imperialist power is the United States of America. What is the
relationship of the US to the International Criminal Court?

According to the American-based
Global Policy Forum:

The United States government has
consistently opposed an international court that could hold US military and
political leaders to a uniform global standard of justice. The Clinton
administration participated actively in negotiations towards the International
Criminal Court treaty, seeking Security Council screening of cases. If adopted,
this would have enabled the US to veto any dockets it opposed. When other
countries refused to agree to such an unequal standard of justice, the US
campaigned to weaken and undermine the court. The Bush administration, coming
into office in 2001 as the Court neared implementation, adopted an extremely
active opposition. Washington began to negotiate bilateral agreements with
other countries, insuring immunity of US nationals from prosecution by the
Court. As leverage, Washington threatened termination of economic aid,
withdrawal of military assistance, and other painful measures. The Obama
administration has so far made greater efforts to engage with the Court. It is
participating with the Court's governing bodies and it is providing support for
the Court's ongoing prosecutions. Washington, however, has no intention to join
the ICC, due to its concern about possible charges against US nationals.

From the website of the Coalition
for the ICC we read:

The United States voted ‘no’ to
the Rome Statute during the Rome Conference in 1998 when itsdemand that it maintain its Security Council
veto on possible cases was not met. In an effort to maintain US influence in
the drafting process and due to a deep-seated belief in the principles
underlying the ICC, President Clinton signed the Rome Statute on December 31,
2000, on the last day that the Rome Statute was open for signature, demonstrating
an ongoing policy of “constructive engagement.” After the Bush Administration
entered office, on 6 May 2002, President Bush “suspended” the Clinton
signature, demonstrating that the United States would no longer be involved in
the ICC process and that it did not consider itself to hold any legal
obligations under the treaty. Since then, the Bush Administration has undertaken
a policy of “active opposition” to the Court through a global campaign to
obtain immunity from ICC jurisdiction through a multi-pronged approach.As part of its efforts, the Bush
administration has been approaching countries around the world seeking to
conclude Bilateral Immunity Agreements (BIAs), purportedly based on Article 98
of the Rome Statute, excluding its citizens and military personnel from the
jurisdiction of the Court. These agreements prohibit the surrender to the ICC
of a broad scope of persons including current or former government officials,
military personnel, and US employees (including contractors) and nationals.
These agreements, which in some cases are reciprocal, do not include an
obligation by the US to subject those persons to investigation and/or
prosecution. Many governmental, legal and non-governmental experts have
concluded that the bilateral agreements being sought by the US government are
contrary to international law and the Rome Statute. Furthermore, the United
States has gone so far as to suspend military assistance to those States
Parties which do not sign these agreements, amounting to arm-twisting and
bullying of economically vulnerable States that support the ICC. While 101
governments have reportedly signed BIAs, less than 40% of these agreements have
been ratified by Parliament or signed as an executive agreement. In fact, many
legal experts argue that the executive agreements are unconstitutional and
require the approval of Parliament, and are thus not valid agreements.
Furthermore, more than half of States Parties have resisted signing BIAs –
despite large economic penalties imposed by the U.S. – and 53 countries
continue to publicly refuse to sign. In addition, several intergovernmental
bodies have publicly opposed these agreements and have encouraged other states
to resist signing such agreements and continue to uphold the integrity of the Rome
Statute.

The United States passed the America
Service Members Protection Act 2002 which deepened the US refusal to cooperate
with the ICC and it gave authority to
the executive branch to "use all necessary means" to "free
members of the armed forces of the United States 'detained' by the ICC."

On June 29, 2005, The US House of
Representatives passed legislation forbidding economic assistance grants to
most governments party to the International Criminal Court which refuse to sign
bilateral immunity agreements with the Unites States.

On August 26, 2003, The US
refused to join a UN Security Council resolution protecting humanitarian aid

workers — even after the bombing
in Baghdad that killed 22 UN workers — because it referred to the fact that the
ICC has explicitly criminalized attacks against aid workers as war crimes. The
version that passed (Resolution 1502) instead referred indirectly to
"existing prohibitions under international law.”

On October 10, 2006, the US
Congress amended the 2002 American Service Members Protection Act, which cut
all foreign aid to countries that refused to grant immunity to US citizens from
the International Criminal Court. Under the revised version, Washington
re-established military aid to its Latin American and African allies, but kept
the foreign aid restrictions.

Earlier, on December16, 2005, the United States government
attempted to remove mention of the ICC from a UN resolution aimed at protecting
civilians in armed conflict.

In an April 2, 2010 column for
the Washington Post, Stephen G. Rademaker, a former Assistant Secretary of
State during the Bush administration argued that the International Criminal
Court should not expand its jurisdiction
to include the "crime of aggression" at the Review Conference on the
ICC Statute which will took place in May of the same year in Kampala, Uganda.
He believed it would be bad for the
United States, as it would enable the Court to prosecute leaders of any country,
including the United States, that commits aggression on the territory of a
member state.

Way back on January 28, 2005 the
United States did something which is almost identical to some of the current
“anti-imperialist” positions of the AU. It proposed the establishment of an ad
hoc war crimes tribunal in Tanzania to deal with allegations of genocide in
Sudan where Washington intended for the African Union to play a key role in the
court, which were designed to meet theUS administration's twin goals of confronting
atrocities in Sudan and shunning the International Criminal Court.

From the above, it is clear that
the US opposition to the International Criminal Court has been MORE virulent,
vigorous andmore sustained than any
criticism of the Hague-based court from the AU. Should we then conclude from
this hostility to the ICC that the United States has been MORE
“anti-imperialist” than the AU?

5.0.The
ICC is an AFRICAN Court

There are34 African countries who are state parties to
the Rome Statute. A total of43 African
countries are signatories. Egypt, which unbeknown to some people, is firmly
part of the African continent, recently expressed interest in joining the
International Criminal Court. Africa is well represented in the ICC’s staff.
Out of a total of 658 permanent ICC staff, 144 are African nationals,
representing 34 African nations. The Chief Prosecutor is Gambian jurist

Fatou
Bensouda.Five of the court’s judges
including Chile Osuji who is presiding over the Ruto case, are African. The
first Vice President of the Court and the Deputy Registrar are Africans.

Most poignantly, most victims
whose cases are before the ICC are African. More than 5 million African victims
have been displaced, more than 40,000
African victims killed, hundreds of thousands of African children transformed
into killers and rapists and thousands of Africans-female and male- raped.

Of the 8 African cases before theICC, four instances—in the Democratic
Republic of Congo, Uganda, the Central African
Republic and Mali werereferred by those
very African countries. Lest we forget, here in Kenya,Luis Moreno Ocampo was given evidence of the
PEV atrocities by the government appointed Waki Commission. There was a chance
to have these cases tried in Kenya, but we all remember the raucous chorus “
Don’t Be Vague, Let’s Go to the Hague!”

Ambassador Tina Intellman, the President of the Assembly of
State Parties to the Rome Statute remarked recently:

“My largest constituency is Africa and its state parties. I
make every effort to liaise with them and be truly attentive to their concerns.”

This is what Ndungu Wainaina, Kenyan policy analyst and
civil society commentator recently told those who called ICC“an imperialist court”:

“If the International Criminal Court (ICC) is a colonial and
imperialist court, then Amos Wako, Aaron Ringera, Francis Muthaura, Thuita
Mwangi, Julius Sunkuli, among other key top Kenya government officials who played a key
role in 1998 (including Kenya holding Vice –Presidency at a certain stage)
during Rome Statue negotiations are the real colonialists and imperialists.”

There is an ongoing online debate partly sponsored by the Office of the ICC Prosecutor and UCLA School of Law titled, "Is the ICC Targeting Africa?" which is hosted at this site. Some of the interventions are fascinating.

6.0. Conclusion

There is no doubt that the relationship between Africa and the ICC is complex, contradictory and multi-faceted. While there are LEGITIMATE claims about the double standards-for instance, it is a fact that Luis Moreno Ocampo declined to investigate situations in Iraq and elsewhere, it is HYPOCRITICAL to come up with this blanket charge of the ICC being a so called "imperialist court".

If we take the perspective of the African victims, the issue suddenly gets another dimension. It is critical that one does not conflate the selfish myopic interests of African leaders for those of the millions of African masses. For instance in Kenya, in opinion poll after opinion poll, the citizens of Kenya have supported the ICC process to the hilt. By and large the victims and survivors of the 2007/2008 post election violence which gave rise to the current Hague trials featuring Uhuru Kenyatta and William Ruto have NOT clamoured for those cases to be abandoned.

Indeed, on October 30, 2013, the legal representative for the victims referred to the attempts to seek a deferral "repugnant and odious" as you can see from this news link:

NAIROBI, Kenya, Oct 30 – The Legal Representative for Victims in the case against Uhuru Kenyatta has urged the International Criminal Court (ICC) to reject the President’s application for a stay of his trial.

Fergal Gaynor contends that the application is one of many stall tactics President Kenyatta has employed and would be, “repugnant and odious to the administration of justice,” should trial chamber V(b) allow it.

“The application is made in the context of a multi-faceted campaign by the accused, supported by his Government, to avoid trial,” Gaynor’s response reads.

He argues that President Kenyatta’s rallying of the African Union against the ICC and the subsequent petitioning of the United Nation’s Security Council for a deferral is proof of the defendant’s campaign to avoid trial.

“International efforts to support that campaign include an address by the accused on October 12, 2013, two days after the defence filed the application, in which he described the court to the African Union as “[a] painfully farcical pantomime” and as “the toy of declining imperial powers”. The accused also asserted that “we only get bias and race-hunting at the ICC,” Gaynor quoted.

The lawyer also argues that allowing a stay of President Kenyatta’s case in order to allow for a pre-trial evidentiary hearing could cause more prosecution witnesses to withhold their testimony.

“The risk of withdrawal of key witnesses is already serious. The Kenyan media has heavily publicised the withdrawal of prosecution witnesses in this case and in the Ruto and Sang case. The Ruto and Sang trial has also seen widely-publicised efforts to reveal the identity of a protected witness during the proceedings,” Gaynor reminded the chamber.

He also made the case that the credibility of the prosecution witnesses can be challenged during the trial process and witnesses OTP-118, OTP-11 and OTP-12 need not be subjected to a pre-trial evidentiary hearing.

“The risk that those would not return to testify if exposed to such an experience is considerable,” Gaynor argues.

More compellingly however, Gaynor makes the case that those he represents have waited for justice long enough and would suffer a grave injustice should President Kenyatta’s application be granted.

“The victims in Kenya see no sign of any genuine effort to prosecute before the Kenyan courts any of those responsible for the crimes committed against them. Rather, they see the accused and his Government making an enormous effort at the highest international levels to bring the present trial – which is their only hope of justice – to an end. To grant the application would truly be “repugnant and odious to the administration of justice,” Gaynor concludes.

President Uhuru Kenyatta's anti-West rhetoric was cooked up in the UK by some White cooks with neo-conservative Tory links as you can see in the passage below:

BRITISH Public Relations firm BTP was contracted by Uhuru Kenyatta to manage Jubilee campaigns.

This firm developed the Anti-ICC and Anti-western strategies which
Uhuru used to project the ICC and most western countries as
‘interfering’ with Kenya’s domestic affairs.
This firm used media connections and ‘international contacts’ to
market Uhuru as a victim of politically instigated fabrications by his
Main Challenger, Raila Odinga.

Here was a man whose campaign was based on anti-West sentiments, yet
employed propaganda minted by a western (European) PR firm to ascend to
power.

For close to a year, Uhuru readily used the services offered by the West. It was all politics. All PR spin. . .and it worked.

Here is the list of BTP operatives which surrounded Uhuru even as he
unashamedly lectured off the West and created a siege mentality among
his followers:

This team was assisted by local representative Nana Gecaga and TNA media pointman Moses Kuria.

Another Uhuru lawyer Stephen Kay, another Briton; and Ed Staite,
former advisor to British Chancellor of Exchequer, also a Briton joined
this long list of expatriates working for Uhuru.

SOURCE: Kenya Today

David Hoile is the author of a book slamming ICC as "Africa's Guantanamo Bay".

What he does NOT disclose is that he is a paid lobbyist for ICC fugitive Omar al Bashir of Sudan.

Here is a snippet of an expose:

David Hoile is an
apologist for the Sudanese Islamist regime. He works for the
European-Sudanese Public Affairs Council. The British ‘professor’ is
noted for his defence of Khartoum actions in Darfur. In particular he
stands up for the President Omar Al-Bashir (critique of his views here). At present he is active in opposing charges levelled against the dictator by the International Criminal Court.

Hoile’s identification with Islamism goes further. He states that (here),
“The fact is that within the Arab and Islamic world Sudan has led the
way with regard to women’s social, political and economic rights.” Not
surprisingly he has attracted the admiration of Respect Party notable, Yvonne Ridely (here).

In Le Monde (29.9.10)
it is revealed that he attended the Geneva building of the ”conseil
des droits de l’homme’ (human rights council) on the 16th of September.
He claimed to represent an independent NGO under the name of ‘David
Howil’. At a meeting of the Hawa Society for Woman, a ‘GONGO’
(Government Operated non-Governmental Organisation), he attacked the
International Court, calling it a “ European Guantanamo”. ‘Howil’ ,
defending Sudan against “propaganda” saw “positive developments” in its
human rights record.

In the 1980s Hoile was one of the leaders of the Federation of Conservative Students.
He backed the Contras in Nicaragua, UNITA in Angola, and attacked the
ANC. He is worse a badge saying “Hang Nelson Mandela”. Hoile equally
enthused over Remano, the anti-Frelimo guerilla movement in Mozambique,
financed by the South African apartheid regime.

Here is how Hoile the so called "friend" of Sudan and Kenya-I debated and exposed him right here in Nairobi at the Hilton Hotel last year during a public forum on the ICC organized by Okoiti Omtatah but bankrolled by some shady forces- referred to the world's MOST RESPECTED STATESMAN. Go to this link and see how David Hoile regarded Nelson Mandela not too long ago.

The International Criminal Court in my opinion, is an arena of contest between various forces but primarily pitting those who are committed to social justice, democracy, peace and human rights on the one hand and those who perpetrate violence and support impunity on the other hand.

The whole thing about the ICC being "an imperialist court" is a chimera; a bogey man; a red herring.

2. During the 2010 Referendum on the Constitution, William Ruto was at the forefront of those OPPOSING this progressive, democratic document. His extremely conservative religious beliefs resonated very much with the far right Tea Party lunatic fringe of the US Republican party.

By the way, do you KNOW who was one of the most ARTICULATE and VOCAL proponents of the Hague option a couple of years ago?

Those are hardly the credentials of certified and genuine African anti-imperialist crusaders.

And talking of imperialism. neo-colonilaism and Africa, I found this South African intervention by

Andile Lungila, the former Deputy President of the ANC Youth League writing in Issue 183 of the African Communist (January 2011) intriguing:

21st Century Imperialists and Neo-Colonialists

China’s Export Import Bank, Exim,
pledged finance for major road and rail construction projects and for the
rehabilitation of its mining sector, badly damaged by years of war, corruption
and neglect. China has reportedly already dispatched 5 000 containers of mining
equipment to renovate mines involved in Katanga province. DRC Planning Minister
Oliver Kamatu has said $3-billion will go towards bringing mining back into
operation and $6-billion will be spent on infrastructure projects. China’s
Sinohydro Corporation and China Railway Engineering Corporation have negotiated
a deal giving them a 68% share in a joint venture, with 32% going to state
copper mining company Gecamines.Chinese
state companies have been granted rights to two large copper and cobalt
concessions representing around 10,62-million tons of copper and 620 000 tons
of cobalt. The DRC produced 500 000 tons of copper annually in 1989 at its
highest levels of output.

The new infrastructure proposed
will consist of 3 300km of road and 3 000km of railway. Mineral-rich Katanga
will be connected by rail to the port of Matadi in the west and by road to
Kisangani on the Congo River. Transport links to Zambia in the south will also
be improved.

Two hydro-electric dams are
proposed to facilitate mineral exploitation and export energy to take advantage
of power-starved Africa, particularly Southern Africa. Most of the
infrastructure construction will be carried out by Chinese companies and labour
with very little benefit to the Congolese workforce or to the wider economy.
DRC Infrastructure Minister Pierre Lumbi reported to the DRC parliament that
the deal included the construction of several hundred clinics, hospitals and
schools, but this contribution is small for a country the size of Western
Europe.

As with previous sell-offs of
mineral rights in the Congo, the value of the concessions to China cannot be
easily quantified. No tender process is in place to assess the assets. But
Congo businessmen speculate that China will reap at least $30-billion in
profits.

The privatisation programme in
the DRC, implemented by the Washington dominated International Monetary Fund
and World Bank after the end of the war in 2003, opened the door for dividing
up the nationalised mining industry.

Contracts were drafted that gave mining
concessions away for as little as $15-million when resources were valued at
$60-billion.

China’s increased role in DRC has
displaced the former colonial power Belgium, which has become highly critical of
President Joseph Kabila’s government.

Kabila has forced the Belgian government
to close its consulates in Bukavu, withdrew DRC’s Ambassador to Brussels and
closed the consulate in Antwerp earlier this year. The Belgium diamond industry
is said to be horrified by the move.

The other protagonist in the
‘Great Game’ is the USA. The value of Obama’s family background was recognised
early in his bid for the presidency of the United States by Zbigniew
Brzezinski, former national security adviser under President Jimmy Carter and a
key figure in the formulation of Obama’s foreign policy. In August 2007,
Brzezinski declared that Obama “recognises that the challenge is a new face, a
new sense of direction, a new definition of America’s role in the world”. Brzezinski
was among major figures in the US foreign policy establishment who saw in Obama
a means of giving the USA a “new face” to the rest of the world, something they
deemed critical after the blunders and setbacks to American imperialism under
Bush. Obama lived up to expectations in Ghana. He played on his African
ancestry, just as he had emphasised his Muslim heritage the previous month in Cairo.
The image of the two Obama children walking out into the sunlight from the “door
of no return” at Cape Coast Castle, from which so many Africans did not return,
was a skilfully exploited photo opportunity. Leaving this scene of so much
human suffering, Obama said:

“It reminds us that as bad as
history can be, it’s always possible to overcome.”

This was meant to imply that no
matter what Africa has suffered in the past, and no matter what the continent
continues to suffer at the hands of the banks, corporations and Western
governments, the responsibility and the fault rests with the African people
themselves.

Obama brought an uncompromising message,
spelling out in a more open way than George Bush dared to do during his visit
to Ghana in 2008, that aid would be made available only in return for the
implementation of policies that serve the interests of the US government and corporations
and that there would be less of it in future.

“Development,” Obama told
parliamentarians, “depends upon good governance. That is the ingredient which has
been missing in far too many places, for far too long. That is the change that can
unlock Africa’s potential. And that is a responsibility that can only be met by
Africans.”

But the lecture also carried a
threat:

“We have a responsibility to
support those who act responsibly and to isolate those who don’t, and that is
exactly what America will do,” Obama declared.

It was a message no pink-faced
Western leader could have delivered without arousing resentment in Africa. The
provision of aid has always been a political mechanism to force former colonial
countries to pursue policies that serve the interests of the imperialist
donors.

But whereas Bush was obliged to
make some token gestures, such as setting up the Millennium Challenge Account
and increasing funding for Aids and malaria, Obama used the kudos he derived
from his ancestry to point-blank insist that African governments toe the US
line.

Obama’s insistence that Ghana and
other African governments achieve “good governance” is a demand for more of the
free-market measures that are already being imposed with disastrous results for
the social conditions of the population. “Good governance” means privatising
essential services such as telecommunications, water and power, as well as social
services like health and education. It also means removing subsidies from small
farmers and abolishing import controls.

Ghana has gone a long way down that
route, which is why it has been favoured with visits from two successive US
presidents. It is far from being one of Africa’s poorest countries, but 70% of the
population in its northern regions live on less than a dollar a day. Life
expectancy is only 58 years. Women often have to walk more than 3km to find
water, and it is seldom clean. This situation is set to worsen dramatically.
The global recession has hit Africa hard. Ghana was among those countries
granted debt relief in 2005, but with the value of its currency falling, it is
rapidly sliding into debt once more. The government’s response has been to
impose an austerity budget in an attempt to balance the books.

Obama has shifted the emphasis of
the “war on terror” from Iraq to Afghanistan and Pakistan. But the place of
Africa in US global strategy remains essentially the same. First, it is a vital
source of strategic resources such as oil and gas, but also of many key
minerals. Second, a high proportion of the world’s shipping lanes run close to
Africa’s shores.

It follows that any American
administration must make the establishment of US domination of Africa a
priority.

What was not mentioned on Obama’s
Africa trip was the new US military command for Africa, Africom, established under
the Bush administration. Previously US military operations in Africa were divided
between the Middle East and the European commands. The decision to establish a
separate African command represented an intensification of US strategic
interest in Africa. Currently, Africom’s headquarters are in Germany.

The intention is to find a base
on the African continent, but the Bush administration could not persuade any
African country to offer facilities. Obama could not raise such a politically
sensitive issue publicly. In conjunction with his visit, however, Africom was
carrying out a programme of activities, including the visit of the guided
missile destroyer USS Arleigh Burke to Dar es Salaam in Tanzania and a seminar
on “health and security” in Lusaka, Zambia.

This militarisation of US foreign
policy in Africa reflects America’s inability to deal by economic means alone
with the growing rivalry it faces. China has just surpassed the US to become
Africa’s main trading partner. America’s trade with Africa was worth
$104-billion in 2008, a 28% increase, but China’s trade with Africa was worth $107-billion,
a tenfold increase over the last decade.

In conclusion, I would like to
discuss the relationship between China and the US. China officially ended its
decadelong yuan-dollar peg in 2005, due to pressure from the Bush
administration for more “flexible” exchange rates, but continued to maintain
tight control over the currency to keep Chinese exports competitive. At the
same time, the yuan’s gradual revaluation of 20% over the past three years
generated enormous pressure on Chinese exporters, even before the collapse of
the foreign orders in recent months. Amid escalating job losses and the
prospect of social unrest, there are mounting calls within China for the
government to devalue the yuan. By last November, 20-million rural migrant
workers in China had already lost jobs, with new estimates pointing to 40-50-million
more in early 2010. These figures do not include millions of unemployed urban
workers. At the World Economic Forum in Davos, Switzerland, Chinese Premier Wen
Jiabao blamed the US for “excessive expansion of financial institutions in
blind pursuit of profit” and “lack of self-discipline among financial institutions
and rating agencies” for the present global economic crisis. While not naming
the Obama administration, Wen declared: “Protectionism serves no purpose except
to worsen and prolong the crisis”. The US-China tensions have raised fears that
Beijing could dump its US assets of more than $1-trillion, precipitating a
devastating collapse of the dollar. It could provoke China into a sudden dramatic reconsideration and readjustment of
its exchange rate and foreign reserves management, up to and including its
willingness to hold US sovereign bonds. It must be remembered that the
dollar-yuan link, established in 1994, allowed a real price system to arise in
China and created a single economic fabric stretching across the Pacific.
Before long, the whole region had adopted what has come to be known as the East
Asian Dollar Standard. A significant proportion of Chinese goods are
manufactured on behalf of US corporations, boosting their profit rates and
temporarily sustaining the consumption of Americans despite the stagnation and,
in many instances, decline in real wages. More importantly, China’s expanding
trade surpluses became a major source for buying US Treasury bonds, helping
finance the US trade and balance of payment deficits. China and Japan alone
hold a quarter of the $5,8-trillion outstanding US government debt. The flow of
cheap credit and low-price goods from Asia helped the US Federal Reserve Board
maintain a low interest rate policy, thus providing the basis for Wall Street
to create ever bigger debt and credit bubbles and creating an expanding market
for industries in China, including those owned by US firms.

The US and China are playing the ‘Great
Game’ in the same manner that former imperial powers Tsarist Russia and Great
Britain played in an earlier historic epoch. The US strategy is to keep China off
balance and to preserve the ever-growing mass of dollars from deflation and
displacement. The US must necessarily “ride the tiger” of China’s rise; of China’s
holdings of $2-trillion in dollar reserves and corporate bonds; and of China’s
growing involvement in Africa for natural resources. In doing so it hopes
either to cement China’s involvement in the international status quo that will
continue to subsidise America’s relentless economic decline in coming decades
or, failing that, to exploit the social fissures in Chinese society and have an
opportunity to have a client regime in China. China’s strategy is to exploit
the blunders and arrogance of past and present US administrations, and employ its
relatively strong economic position to strengthen its geo-political position, and
thus accelerate the US’s already diminishing hegemony.

There is an African idiom that
asserts that “when two elephants fight, it’s the grass that suffers”. In this
instance it would appear that Africa will be the grass to suffer in the ‘Great
Game’ of imperialists!

Cde Lungisa was the ANC Youth
League Deputy President; Pan African Youth Union ; Vice President and Executive
Chairperson of the National Youth Development Agency

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